The nation has been witnessing a frenzy of demolition drives for the past few weeks.
Article 300A of the Indian Constitution categorically states“No person shall be deprived of his property save by the authority of law.
What is the issue?
The State government claims that these demolitions are in response to illegal encroachments.
However, the fact that these arbitrary demolitions are being carried out against the alleged rioters of one particular community and in the immediate aftermath of the riots shows that their purpose seems to be to impose collective punishment.
How they are violating several Rights of the People?
Right to housing: The right to housing is a fundamental right recognised under Article 21 of the Indian Constitution.
Further, it is also a well-documented right under the international human rights law framework, which is binding on India.
As per UDHR; Article 25 of the Universal Declaration of Human Rights (UDHR) states that “everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care”.
Article 12 of UDHR prohibits arbitrary interference in an individual’s right to property.
It also stipulates that “everyone has the right to the protection of the law against such interference or attacks”.
Supreme Court’s stand:
The apex court in cases like Bachan Singh vs State of Punjab, Vishaka vs State of Rajasthan, and in the Puttaswamy vs Union of India has stated that the fundamental rights must be read and interpreted in a manner which would enhance their conformity with international human rights law.
International Human Rights Violation: It is also a well-documented right under the international human rights law framework, which is binding on India.
Article 12 of the UDHR states that “no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence or to attacks upon his honour and reputation”.
Some major Judgments
Maneka Gandhi vs Union of India (1978):
In this Case, the Supreme Court, while interpreting the scope of Article 21 of the Constitution stated that the “due process of law” is an integral part of “procedure established by law”, explaining that such procedure must be fair, just and reasonable.
If the procedure prescribed by law is fanciful, oppressive and arbitrary in nature then it should not be considered procedure at all and thus not all the requirements of Article 21 would be satisfied.
Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors (1985):
In this Judgement, the Supreme Court ruled that eviction of pavement dwellers using unreasonable force, without giving them a chance to explain, is unconstitutional.
It is a violation of their right to livelihood.
What can be done further?
Judicial interference: As the custodian of India’s constitutional order, it is high time that the judiciary acted and imposed necessary checks on the unbridled exercise of power by the executive.
International agencies: Courts should use international law to counter the nationalist-populist discourse.
Legal Provisions: Any justification for a demolition drive, as a penal consequence to a criminal act is totally against established canons of criminal justice.
Saving the Basic structure: The conduct of demolition drives, as a retaliatory measure, even with the avowed object to curb violence is a clear act of subversion of the principle of rule of law.